Wilke Fleury ranked in Best Lawyers’ Best Law Firms!!
December 03, 2024 —
Wilke Fleury LLPWilke Fleury is pleased to announce its inclusion in the 2025 edition of ‘Best Law Firms’ ranked by Best Lawyers! Firms included in the 2025 “Best Law Firms” list are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal expertise.
Read the court decisionRead the full story...Reprinted courtesy of
Wilke Fleury LLP
Second Circuit Court Differentiates the Standard for Determining Evident Partiality for a Neutral Arbitrator and a Party-Appointed Arbitrator
August 07, 2018 —
Celia B. Waters - Saxe Doernberger & Vita, P.C.On June 7, 2018, the Second Circuit Court in Certain Underwriting Members of Lloyds of London v. Fla., Dep’t of Fin. Servs.,1 held that a party-appointed arbitrator should not be held to the same standard as a neutral arbitrator. The Court vacated a district court’s order vacating an arbitral award in a reinsurance dispute between Insurance Company of Americas (“ICA”) and Certain Underwriting Members of Lloyds of London (“Underwriters”). The case was one of first impression for the Second Circuit on how to determine the standard of evident partiality challenged to a party-appointed arbitrator.
Underwriters reinsured ICA under a series of treaties. The treaties each contained an arbitration clause requiring that disputes be adjudicated by an arbitration panel consisting of three members: one party-appointed arbitrator for each party, and a neutral. The clause required only that the arbitrators “be active or retired disinterested executive officers of insurance or reinsurance companies or Lloyd’s London Underwriters.”
Read the court decisionRead the full story...Reprinted courtesy of
Celia B. Waters, Saxe Doernberger & Vita, P.C.Ms. Waters may be contacted at
cbw@sdvlaw.com
President Trump Issued Two New EOs on Energy Infrastructure and Federal Energy Policy
May 20, 2019 —
Anthony B. Cavender - Gravel2Gavel1. The first EO is very comprehensive, affecting many federal agencies and departments, and is entitled “Promoting Federal Infrastructure and Economic Growth.” The EO emphasizes its concern with the need for infrastructure that “ is capable of safely and efficiently transporting these plentiful resources to end users.” To that end, the EO:
- (A) states the general policy that the U.S. Government is to promote private investment in the Nation’s infrastructure by establishing efficient permitting processes and procedures that avoid duplication and result in increased regulatory certainty;
- (B) reviews and revises existing federal guidance and regulations regarding Section 401 of the Clean Water Act (CWA), with particular emphasis on EPA’s guidance document, CWA Section 401 Water Quality Certification, and actions will be taken in accordance with a regulatory schedule set forth in the EO which has as its objective a notice of proposed rulemaking on the Environmental Protection Agency’s (EPA) Section 401 regulations to be published in 12 months, with the final rules to be issued by May 2020;
Read the court decisionRead the full story...Reprinted courtesy of
Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
Building Resiliency: Withstanding Wildfires and Other Natural Disasters
September 25, 2023 —
Bill Creedon - Construction ExecutiveAccording to the National Fire Protection Association, between 2016 and 2020 an estimated average of 4,300 fires per year plagued structures under construction, adding up to about $376 million in annual property damage. More recently, the National Centers for Environmental Information reported that wildfires accounted for more than $3.2 billion in damages across the United States. These figures alone point to the heightened awareness that all companies—particularly construction companies—should maintain surrounding the unique challenges and risks that wildfires can present and how they could potentially impact the integrity of projects and the associated safety of their workers.
As North America grapples with the increasing frequency and severity of wildfires, hurricanes and additional severe weather events, numerous industries have had to adapt and implement proactive measures to minimize their risks and associated exposures. The impact of these natural disasters on the construction industry is indisputable, necessitating proactive measures that construction companies should seriously consider adopting to effectively mitigate those risks, efficiently navigate insurance complexities and seamlessly integrate data-driven solutions alongside modern tools like AI and predictive modeling.
Reprinted courtesy of
Bill Creedon, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Read the court decisionRead the full story...Reprinted courtesy of
Mr. Creedon may be contacted at
bill.creedon@wtwco.com
Eight Ways to Protect a Construction Company Before a Claim Is Filed
November 04, 2019 —
Mary Bacon - Construction ExecutiveClaims are inevitable in the construction industry. They can take on a life of their own and come with the burden of legal fees, wasted executive time and a possible judgment. Too often the only winners are the lawyers.
TIPS FOR PROTECTING MANAGEMENT AND THE BUSINESS BEFORE A CLAIM IS FILED
- Respect the business entity’s corporate structure. First and most importantly, respect the business entity’s corporate form. Legal entities have certain formalities like filing an annual list of officers, maintaining separate bank accounts, conducting certain meetings and following bylaws, etc. Respect these formalities. Failure to follow them exposes the owner to personal liability for company debts. And while a business claim has the potential to wipe out a business, owners should not risk having their personal assets on the line as well.
- Get a good contract. In most instances, a contract governs what happens and who is responsible for payment associated when a certain issue or dispute arises. A clear, well-written contract can often avoid a dispute or liability for a dispute. Actively participate in the contract negotiation and drafting process to make sure each party’s role and responsibilities are clearly accounted for.
- Make friends with clients. While it is true that “business is business,” people are often fairer and more willing to work towards a solution for people they are friends with. In most cases, friends will help friends in ways that people would not help mere business associates. When encountering a problem on a job, a friend may be willing to help achieve a more favorable outcome.
Reprinted courtesy of
Mary Bacon, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Read the court decisionRead the full story...Reprinted courtesy of
Ms. Bacon may be contacted at
mbacon@spencerfane.com
There’s the 5 Second Rule, But Have You Heard of the 5 Year Rule?
April 23, 2024 —
Garret Murai - California Construction Law BlogThey’re called deadlines for a reason. Usually, because something really bad could happen if you fail to meet the deadline.
For those in the construction industry, you probably aware of the “deadline” to bring a claim for latent defects (10 years from substantial completion); the deadline to file suit to foreclose on a mechanics lien (90 days from the date of recording the mechanics lien), and the deadline for serving a preliminary notice (generally, 20 days from the date labor and/or materials are first furnished).
Well, here’s another deadline: Under Code of Civil Procedure section 585.310, you have 5 years after a complaint is filed to bring a case to trial, absent the court granting relief. I could leave it at that, but in the next case, Oswald v. Landmark Builders, Inc., 97 Cal.App.5th 240 (2023), was too interesting to pass up.
The Oswald Case
On June 28, 2016, homeowners Jack Oswald and Anne Seley sued their general contractor and its subcontractors alleging construction defects at their home. Answers and cross-complaints were filed and on February 2017 the trial court determined the case to be complex and appointed a discovery master. A discovery master, for those who may be unfamiliar, is usually a retired judge or third-party lawyer appointed by a court to oversee discovery in a case such as written discovery, depositions, site inspections, etc.
Read the court decisionRead the full story...Reprinted courtesy of
Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
Water Drainage Case Lacks Standing
March 28, 2012 —
CDJ STAFFThe Texas Court of Appeals has ruled in the case La Tierra de Simmons Familia Ltd. V. Main Event Entertainment, LP. The trial court had found for Main Event. On appeal, the court threw out some of the grounds on which the trial court had reached its decision.
The case involved two commercial lots in northwest Austin, Texas. The uphill tract (Phase III of the Anderson Arbor development) diverts its runoff onto the lower tract (the “Ballard tract”). The owners of the Ballard tract claim that “the drainage system was designed or constructed in a manner that has damaged and continues to damage the Ballard tract.”
Both tracts have undergone changes of ownership since the construction of the drainage system in 2004. At the time the drainage system was constructed, the parcel was owned by Sears Roebuck and Co. Sears later sold the property. Main Event Entertainment is the current tenant. Likewise, the Ballard tract was previously owned by the Ballard Estate which sold the property to La Tierra on an “as is” basis in 2007.
After La Tierra bought the Ballard tract, La Tierra’s engineer “witnessed and videotaped what he described as ‘flooding’ on the Ballard tract caused by storm water discharge from the Anderson Arbor drainage system during a rainfall event.” La Tierra determined that an adequate drainage system would cost about $204,000. Development plans were put on hold.
La Tierra sued Main Event and various other parties associated with the uphill tract, seeking “actual damages for (1) decrease and loss in rental income due to delay in obtaining the development permit, (2) interest on carrying costs during that time period, (3) the cost to build a water conveyance system on the Ballard tract, (4) engineering fees incurred to redesign the water conveyance system, (5) unspecified out-of-pocket real estate expenses, and (6) property devaluation occasioned by the need to construct an expensive water conveyance system.” The trial court never reached these claims, ruling instead that La Tierra lacked standing, that its claims were barred under the statute of limitations, and that there was no evidence of damage.
La Tierra appealed, arguing that “(1) the summary-judgment evidence does not conclusively establish that property damage claims accrued or were discovered prior to September 11, 2007, which is within the limitations period and was after La Tierra purchased the property; (2) even if the property was damaged before La Tierra acquired ownership of the Ballard tract, standing exists based on the assignments of interest from the Ballard Estate heirs, and the discovery rule tolls limitations until the injury was discovered on September 11, 2007; (3) limitations does not bar La Tierra's request for injunctive relief; (4) La Tierra's water code claim against Main Event and M.E.E.P. is viable based on their control over the drainage system, which makes them necessary and indispensable parties for injunctive relief; (5) La Tierra presented more than a scintilla of evidence to raise a fact issue on damages, causation, and other essential elements of its causes of action; and (6) the trial court abused its discretion when it sustained the defendants' objections to La Tierra's summary-judgment evidence.”
The appeals court concluded that La Tierra’s second claim was irrelevant to standing, as La Tierra “obtained assignments from the Ballard Estate heirs ? nearly one year after the lawsuit was initially filed.” Nor did the court accept their first point. The water system had been operating unaltered since January, 2004, with monthly maintenance and inspection to maintain its designed operation. Further, a feasibility report La Tierra received stated that “over sixteen acres drain into those ponds, and thus onto this site.” The court noted that “the underlying facts giving rise to a cause of action were known before La Tierra acquired ownership of the Ballard tract.”
The court concluded that the drainage issue is a permanent injury, but that it “accrued before La Tierra acquired an ownership interest in the property.” As La Tierra has standing, the appeals court ruled that it was improper for the trial court to rule on the issues. The appeals court dismissed the questions of whether the case was barred under the statute of limitation and also the question of whether or not La Tierra had damages.
As the issue of standing would not allow La Tierra to bring the suit, the appeals court found for the defendants, dismissing the case for this single reason, and otherwise affirming the ruling of the lower court.
Read the court’s decision…
Read the court decisionRead the full story...Reprinted courtesy of
California Supreme Court Upholds Precondemnation Procedures
September 22, 2016 —
Patrick J. Paul – Snell & Wilmer Real Estate Litigation BlogOn July 21, 2016, the California Supreme Court in Property Reserve v. Superior Court upheld the state’s precondemnation entry and testing statutes provided they were reformed to allow impacted property owners the ability to have a jury trial to determine damages associated with such entry and testing.
The California Department of Water Resources (DWR) sought to construct water conveyance facilities that would require significant property condemnation. As part of this process, DWR further sought to investigate the environmental and geological suitability of more than 150 private properties considered for the conveyance route.
Read the court decisionRead the full story...Reprinted courtesy of
Patrick J. Paul, Snell & Wilmer Mr. Paul may be contacted at
ppaul@swlaw.com
